A D D R E S S E S
Presentation of Portrait of Chief Justice
Leonard Henderson
to the
Supreme Court of North Carolina
Leonard Henderson
ADDRESS
OF
Judge Robert W. Winston
Presenting the Portrait of Chief Justice Henderson to
the Supreme Court of North Carolina
Address of Acceptance
BY
Chief Justice Walter Clark
Digitized by tine Internet Arciiive
in 2011 witii funding from
University of Nortii Carolina at Chapel Hill j
http://www.archive.org/details/leonardhenderson111wins
Address of Judge Robert W. Winston
Mr. Chief Justice and Associate Justices oj the Supreme
Court OJ North Carolina:
" When Cellini's statue of Perseus was first exhibited
on the Piazza at Florence, it was surrounded for days by an
admiring throng, and hundreds of tributary sonnets were
placed upon its pedestal." We are assembled today in this
hall, whose walls are adorned with portraits of our State's
great jurists, and in the presence of worthy successors to
those judges, whose " dignity, wisdom and ability have
made North Carolina's proudest possession her courts of
justice," to hang in its proper place, between Taylor and
Ruffin, a portrait of Chief Justice Henderson. In the
name of. the living kinsfolk of him, of whom Judge Pear-
son, in the leading case of State v. Deal, 64 N. C, 273,
declared, " His powers of reflection exceeded that of any
man who ever had a seat on this bench, unless Judge Hay-
wood be considered his equal in this respect," I present
to you this portrait of Leonard Henderson, one of the first
Justices of this Court upon its organization in its present
form in 1818, and Chief Justice of this Court from 1829 to
the date of his death in 1833.
The Chief Justice's grandfather was Colonel Samuel
Henderson, who was the first high sheriff of Granville
County. The Henderson family removed from Hanover
County, Virginia, to Granville County, North Carolina,about
the year 1740, and here Colonel and aftewards Judge Rich-
ard Henderson, son of Samuel Henderson, married Elizabeth
Keeling, from which marriage sprang the jurist, Leonard
Henderson. A man's education begins, they say, hun-
dreds of years before he is born, and hence it is not difficult
to trace to their source certain characteristics of the Chief
Justice — his originality, his independence, his rugged per-
sonality. How could he have been otherwise? Samuel
Henderson, the grandfather, strong and rugged, had exe-
cuted his writs, subpoenas, and other processes, a-foot
through the forest primeval, traversing a territory from
Virginia on the North to Johnston on the South, and from
the mountains on the west to Northampton on the east.
" The father, Richard Henderson, holding the minor office
of constable, and fired by a noble ambition, determined to
enter the profession of the law." He accordingly read such
books as were to be had, and after a short time presented
himself for examination to the Chief Justice of the Gen-
eral Court, upon whose certificate of proficiency the Gov-
ernor would issue a license to practice law. When this
stripling of the law made known to the examiuer that he
had scarce been sorrowing at the feet of Coke and Littleton
twenty months, not to mention twenty years, he was rudely
advised to go home and not undertake to stand for his
license, to which our undaunted young disciple of Themis
stated with promptness and spirit, that he had come not
to ask advice or seek a favor, but to demand a right. It is
needless to add that the license was worthily won, in the
teeth of the most rigid examination. Subsequently, Col-
onel Richard Henderson attained the highest honor of the
profession under the Royal Government, and after the
War of the Revolution and the adoption of the Constitu-
tion of the United States, he was elected one of the first
three Justices of the Supreme Court of North Carolina.
This office he shortly resigned, or refused to accept, the
reason being that he had more ambitious schemes afoot.
He had undertaken to establish a new colony in the west.
and to this end had organized the Transylvania Land Com-
pany, which purchased of the Cherokee Indians vast tracts
of land in Kentucky and Tennessee. The position of
Governor or President of this colony called him from his
new honors in North Carolina. This colony progressed
so far that it sent delegates to the Continental Congress
at Philadelphia, asking to be admitted as the fourteenth
State of the Union. Of Colonel Henderson it is said that
he was the only private American citizen who had a chap-
lain of his own. When he went into Kentucky with his
expedition he was accompanied by a clergyman of the
Church of England, who acted as chaplain of his forces,
and opened with prayer Henderson's first Legislature.
This good man was shortly afterwards scalped by the In-
dians, who no doubt found him an easier prey than the
heroic president of the company.
Wheeler, in his Reminiscences, gives some interesting
facts connected with the life of Colonel Richard Henderson.
" On I March, 1769," quoting from the record, " at a meet-
ing of the counsel, there being present Governor Tryon,
John Rutherford, Benjamin Herron, Lewis DeRossett, and
Samuel ' Strudwick, Richard Henderson was appointed
assistant Judge, as also Maurice Moore, Esq. Governor
Tryon reports that ' Richard Henderson, Esq., is a man of
ability, born in Virginia and living in Hillsboro, where he
is highly esteemed.' " Colonel Henderson must have led
a life of much daring and some adventure. For example,
on 24 September, 1770, he wrote Governor Tryon that on
that day Herman Husbands, James Hunter, William But-
ler, Ninnian Bell Hamilton, Jeremiah Fields, Matthew
Hamilton, Eli Branson, Peter Craven, John Truitt, Abra-
ham Teed and Samuel Parks, armed with cudgels and cow-
hide whips, broke up the court and attempted to strike the
Judge and made him leave the bench. They assaulted and
beat John Williams severely, and also Edward Fanning,
until he retreated into the store of Messrs. Johnston and
Thackston, and demolished Fanning's house. Not only were
these beaten, but Thomas Hart and John Ludlow, Clerk of
the Crown, and many others were severely whipped. An-
other entry of date 25 January, 1771, is an order entered
by the Regulators that Richard Henderson, who appeared
as prosecutor of several charges against Thomas Pearson,
should pay all costs.
Judge Richard Henderson's family consisted of four
sons and two daughters. Of these William Henderson was
a gallant soldier of the Revolution, Lieutenant-Colonel of
the Third South Carolina Regiment, captured at Charles-
ton, exchanged to First South Carolina Regiment, a hero
of Eutaw Springs, where he was severely wounded 8 Sep-
tember, 1 78 1. Archibald Henderson, an elder brother of
the Chief Justice, was declared by Judge Murphy to be " the
most perfect model of a lawyer the bar has ever produced,
and he contributed more to give dignity to the profession
than any lawyer since the days of General William R.
Davie and Alfred Moore. One need not be told that he was
the grandfather of John Steele Henderson, of Salisbury.
Archibald Henderson was wont to say that he had known
many good lawyers, but few good judges, and in true Bacon-
ian fashion, proceeded to grade judicial qualifications in
this wise : First of all, good common sense ; next, an in-
timate knowledge of men, particularly of the middle or
lower classes — their passions, prejudices and modes of
thought ; thirdly, good moral character, subdued feelings
without prejudices and partiality ; then independence and
energy of will ; and, last of all, legal learning. Mr. Hen-
derson must have been a most loyal party man to cast his
vote as a member of Congress for Burr instead of Thomas
Jefferson for President of the United States. Most of the
Congressmen from our State voted for Mr. Jefferson. In-
deed, so strong a Federalist as Marshall was induced by
Hamilton to vote for the Republican, Jefferson, rather than
for Burr. This is the real secret of the Burr-Hamilton
duel, the remark made by Hamilton concerning Burr at
the gubernatorial caucus in Albany being but the pretext.
Mr. Henderson was buried in Salisbury, and a monument
was erected to his memory by the bar of Western North
Carolina, this being the only monument ever erected in
North Carolina to a member of our bar by his fellows. He
was often a member of the General Assembly and a repre-
sentative of his district in Congress. He left surviving two
children, Archibald Henderson, and a daughter, who mar-
ried Judge Nathaniel Boyden, the family traits being admir-
ably preserved in a grandson, Archibald Henderson Boyden,
sometime mayor of Salisbury. Another son of Richard Hen-
derson, and a 3'ounger brother of Chief Justice Henderson,
was John Lawson Henderson, who often represented the
Burrough of Salisbury in the General Assembly, was Comp-
troller of the State, and Clerk of the Supreme Court, and
died in Raleigh in 1834. Still another son was Pleasant
Henderson, who removed to Cabarrus County.
A bit of romance attaches to the maternal line of the
Chief Justice. His mother was Elizabeth Keeling, and she
was a daughter of Lord George Keeling, so doughty a
defender of the Protestant faith in Ireland that he was
expelled from Parliament and fled to the State of Virginia,
where after getting together enough money by fishing with
improvised nets in the Rappahannock to pay the expenses
of his affianced, Miss Bullock, of crossing over from Wales
to Virginia, they were happily married and became the
parents of Elizabeth, aforesaid, the mother of Chief Justice
Henderson. And albeit Elizabeth in time became the first
lady of the land, she was so careful and thrifty a housewife
that she taught her sons, who were to become law-givers,
statesmen and jurists, the gentle art of carding and spinning.
The great Chief Justice was no less fortunate in his
friends and neighbors and in the county of his birth than
in his ancestry. The county of Granville, bearing the
proud name of John Carteret, Earl of Granville, stretching
from the everlasting hills on the border well into the cotton
belt in the east, was in itself a vast domain. In the hill
country, on Nut Bush Creek, a few miles from the waters
of the fast flowing Roanoke, was born 6 October, 1772,
Leonard Henderson. Hard by his home was Williamsboro,
named for Judge John Williams, whose sister Leonard's
paternal grandfather had married. And at Williamsboro was
Springer College, and Saint John's Church, and the home
of John Stark Ravenscroft, first Bishop of North Carolina,
and of John Penn, signer of the Declaration of Independ-
ence, of Col. Robert Burton, member of the Continental
Congress, of John Lewis Taylor Sneed, afterwards Chancel-
lor of Tennessee, of Robert Goodloe Harper, of lordly
Governor Turner, and a little later of the splendid classical
school of Reverend Doctor Alexander Wilson ; of William
Robards, Treasurer of North Carolina ; of William Hill
Jordan, most eloquent of divines ; cf Patrick Hamilton,
grandfather of the accomplished general counsel of the
Coast Line, and of the Hargroves, Bullocks, Carringtons,
Roysters and Baskervilles, gentle folk possessed of broad
acres, troops of slaves and dogs of all degrees. Near the
end of the eighteenth century, William Lee Alexander
invaded this charmed circle and bore away Elizabeth, sis-
ter to Leonard. But we shall forgive him for the gift of a
grandson, sturdy scion of sturdy stock, who now sits upon
this bench. It may not be uninteresting to note that this
section was a close second to Chapel Hill as a suitable site
for the location of our University ; that at Williamsboro
both the Judge and Solicitor resided, and that from the
Williams family of Williamsboro, descended Gen. R. F.
Hoke, Chief Justice Pearson, John Sharp Williams, of Mis-
sissippi ; Richmond P. Hobson, of Alabama ; Hoke Smith,
8
of Georgia ; Calvin Graves, R. B. Glenn, the Settles and
Dockerys, and that great teacher and sweet spirit, Ralph
H, Graves. Williamsboro of the eighteenth century was
not without its attractions — a well ordered race course —
the best in the State — and a generous tavern, for such the
hotel was called, modeled after an English coffee house,
and presided over by Col. Samuel Henderson. Here judges
and lawyers and travelers of all kinds were hospitably en-
tertained. Here George Washington paid a short visit,
and from here went forth hunting parties into Virginia
and up and down the fast flowing Roanoke. Perhaps the
familiar name, "The Lick," by which Williamsboro was
then called, had reference to the habits of the deer and
to the spot where weary travelers, as well as the antlered
monarchs of the forest, might gather for refreshment.
Often making one of these parties was Pleasant Henderson,
a brother to Leonard, who had removed to Cabarrus and
married. We are indebted to this man, for from him was
lineally descended one who but lately passed from earth,
beloved beyond any man of his day, bearing the grand old
name of gentleman — Hamilton C. Jones, of Charlotte.
The Henderson home was called " Jonesboro," and the
plantation, containing some six hundred acres or more,
stretched across Little Island Creek, another tributary of
the Roanoke. Across from "Jonesboro" was "Montpelier,"
the home of Judge Williams, and in the distance was the
hospitable " Burnside," where the Hamiltons lived, and
nearer to the village stood the " Sneed Mansion House,"
and not far aw^ay was " Belvidere," the romantic home of
Captain Jack Eaton, and "Nine Oaks," where resided
Broomfield Ridley, who married into the Henderson family
and moved to Tennessee, becoming the ancestor of judges
and doctors of divinity,and in easy reach stood "LaGrange,"
owned by John Hare, Esq., a friend of the Hendersons. We
may pause to remark that it was in this vicinity that an
incident in the early life of Edwin G. Reade, then a penni-
less youth, turned his mind to the law and gave to North
Carolina one of its clearest-headed jurists. The home and
its environs made an impression upon the life of the future
Chief Justice. Even in ruins, says Dr. Kingsbury, Wil-
liamsboro is the most antique village to be found. It lacks
but another Goldsmith to become another Sweet Auburn of
the Plains. There is a ruggedness in the foothills of our
mountain system, a serenity in the solemn forests of oak
and pine, a spirit of reflection in the fast flowing streams
hastening to swell the tide of the Roanoke, on whose
banks the red man had but lately pitched his tents and
then silently folded them forever, that made of Leonard
Henderson a man. Here grew up the boy, occasionally
making a visit to his relations in Salisbury, frequently
mingling in the society of Hillsboro and Oxford, but always
retaining his individuality. His education was confined to
the instruction of a local teacher, Rooker by name, intro-
duction to the Greek and Latin classics by Rev. ISIr. Patillo,
a Presbyterian clergyman, the course of learning prescribed
at Springer College, and one or two sessions at Salisbury.
This preliminary work accomplished, he began the study
of law in real earnest, and drank deep from the fountains,
guided in his task by Judge John Williams, his relative.
In 1795 he married his cousin, Frances Farrar, a niece of
Judge Williams, and of this union three sons and two
daughters reached maturity and married, to-wit : Archibald
Erskine Henderson, Dr. W. F. Henderson and John L.
Henderson, Frances who married Dr. W. V. Taylor, and
Lucy who married Richard Sneed. Shortly thereafter he
was appointed Clerk of the District Court of Hillsboro,
where he resided for several years. The State was then
divided into a small number of districts, in each of which
a court of supreme jurisdiction was held twice a year, and
as each district comprised several counties, the clerkship
10
must have been an office of no little emolument as well as
dignity.
"The district system of courts was abolished in 1806,
and the present plan by which a Superior Court is held at
least twice a year in each county, took its place. The State
was divided into six circuits, and a judge was elected for
each circuit. The judges were not required to reside in
their circuits, and they might ride the circuits to suit them-
selves, but no judge might ride the same circuit twice in
succession. The Supreme Court was held in Raleigh, by
the same judges, twice a year, in the intervals of the Su-
perior Court ridings. Two years after the adoption of the
Superior Court system, Leonard Henderson was chosen by
the General Assembly to fill a vacancy caused by the death
of his relative, Judge McCoy, and removed his family from
Hillsboro to Williamsboro. The General Assembly at that
time was composed of members of the Republican party,
while Judge Henderson was an ardent supporter of Hamil-
.ton and Madison. At the same session of the General
Assembly, David Stone was chosen Governor of North
Carolina, he being at that time a leader of the Republican
party. The election of Mr. Henderson in these circum-
stances was a high tribute to his character and eminent
qualifications."
After eight years' service as a judge, upon the meagre
salary of $1,600.00 per year, he resigned his office and re-
sumed the practice of his profession at Williamsboro. Judge
W. H. Battle assigns as a reason for his resignation, that a
man of limited means with an increasing family, could not
well afford to perform the arduous duty of riding two cir-
cuits, composed of ten counties each, and of assisting to
hold two terms of the Supreme Court, for so small a salary.
Neither official dignity and repose, nor a just sense of pub-
lic duty could prevent such a man from returning to- a
profession whose emoluments might supply the increasing
wants of his family.
ii
Soon after his return to Williamsboro, though the ex-
act date is not known, Judge Henderson opened the first
law school ever established in the State. If this school
had its beginning prior to 1810, it was probably the first
law school established in the United States. Judge Hen-
derson is therefore justly entitled to be called the " Father
of North Carolina Law Schools." Doubtless it was while
students at "Jonesboro" that Richmond Pearson and W.
H. Battle dreamed of the day when they too would establish
schools of law, modeled after that of Leonard Henderson,
and become the idols of their boys and wear the ermine,
even as did their beloved preceptor, and " Jonesboro " be-
came the father of Richmond Hill and of the University
Law School. Attracted by the fame of Judge Henderson's
law school and by the culture and refinement of its sur-
roundings, generous youth from far and near gathered to
receive instruction in the law. Among others were Rich-
mond Pearson, William Home Battle, Judge Robert Ballard
Gilliam, Judge Burton and Governor H. G. Burton.
In an appreciative and faithful sketch of Judge Hender-
son, by Judge Battle, we are told that he did not deliver
regular lectures, nor appoint stated hours for recitations,
but directed the studies of his pupils, urging them to apply
to him at all times for the solution of their difficulties, and
was never better satisfied with them than when by their
frequent applications to him for assistance, they showed
they were studying with diligence and attention. As an
instructor Judge Henderson was thorough and accurate.
While he did not formulate the case-system of instruction,
the credit of this great discovery belonging to Prof. Lang-
dell, of Harvard, still, if tradition count for aught, his
young students were not ignorant of concrete cases, selected
by their teacher from the vast volume of business dispatched
by him as a judge. Indeed, Richard Bullock, Esq., the
wealthiest man in the community, and a justice of the
12
peace, often had his patience taxed to the limit by the
enthusiasm of these twigs of the law, as they valiantly
flashed their maiden sword in defence of hapless offenders
in his court. Is it not, after all, the office of a law school
to train men to think, to be firm, to be obedient to consti-
tuted authority, to frown down upon lawlessness, to create
a healthy, clean public sentiment — rather than to give
them something practical ? In a word, to teach law in the
grand manner, and to make great lawyers. Was Judge
Holmes correct in saying, "It is from within the bar
and not from outside that I heard the new gospel that
learning is out of date, and that the man for the time is no
longer the thinker and the scholar, but the smart man, un-
encumbered with other artillery than the latest edition of
the Digest and the latest revision of the statutes " ? If he
was, were it not well to abolish the quizzing process ?
Henderson and Pearson — Gamaliel and Saul — these men
would rather their students reasoned correctly, though they
gave a wrong answer, than that they reasoned wrong and
stumbled upon the right answer.
Judge Henderson was a thorough-going Federalist. He
belonged to that class mentioned by Justice Conner in his
sketch of Gaston who were apprehensive of the political
future of our country under the guidance of Jefferson.
He could but anticipate the day " when in the State of
New York, a multitude of people, none of whom have had
more than half a breakfast, or expects to have more than
half a dinner, will choose a legislature, and when on one
side a statesman will be preaching patience, respect for
vested right, strict observance of public faith — on the other
will be a demagogue, vaunting about the tyranny of capi-
talists and money lenders, and asking why anybody should
be permitted to drink champagne and ride in a carriage,
while thousands of honest folk are in want of necessaries,
and he could but ask himself which of these two was likely
13
to be preferred by a working man who hears his child cry
for more bread. And he saw danger and danger only in
the teachings of Jefferson, the Idealist, if not the dema-
gogue (!), of Jefferson who was then teaching that "con-
stitutions should not be looked upon with sanctimonious
reverence, nor deemed like the ark of the covenant, too
sacred to be touched, that laws and institutions should go
hand in hand with the advance of the human mind, that the
ofhce of judge should be for four or five years, which would
bring their conduct at regular periods under revision and
probation."
These things were most shocking to the Federalists of
that day, and yet it is but a truism that no constitution
has ever been written which did not bear the impress of
Jefferson's mind, and we of the twentieth century can thank
the God of nations equally for Hamilton and Marshall and
for Jefferson and Jackson, for Henderson as well as for
Macon. The resultant of these contending forces is "The
States," time's noblest offspring. We have no fear for
our country, nor will capital and labor clash so long as leg-
islative bodies shall continue to enact laws protecting
childhood, shortening hours of labor, creating old age
pensions, regulating public service corporations, taxing in-
comes, and so long as the courts of last resort see to it that
coaches and six are not easily driven through these benef-
icent statutes. One who seeks the formative period of
political opinion in America, must look to the State Con-
ventions held at the end of the eighteenth century. The
Convention for North Carolina convened in Saint Matthew's
Parish Church, Hillsboro, in 1788. There the parties lined
up for battle, and on one side or the other from that day until
the war drum sounded in 1861, the people of North Caro-
lina, differing from each other upon the fundamental
principles of government, contended as two strong men
standing face to face. Samuel Johnson, President of the
14
Convention, and Davie and Iredell, founders of the Feder-
alist party, afterwards becoming the Whig party, opposing,
and by a vote of 184 to 84, vanquishing Wiley Jones, Tim-
othy Bloodworth and other tribunes of the people, leaders
of the Republican party, subsequently becoming the
Democratic party. These leaders found valiant allies
in Nathaniel Macon and the Henderson brothers, respec-
tively. While the victory perched first on one banner and
then on another, the Republican-Democratic party ever
keeping close to Jefferson, came into the ascendant, and in
1789 at Fayetteville reversed the action of the Hillsboro
Convention. In a few short years. Gen. W. R. Davie, the
aristocratic leader, went down in defeat before Willis
Alston in a heated contest for Congress. Whereupon Gen-
eral Davie, our erstwhile representative at the Court of
Napoleon, became so much disgusted, not only on account
of the turn of affairs and of his own defeat, but particularly
on account of the manner in which it was brought about,
his rough and ready antagonist, Willis Alston, having orig-
inated and circulated a most laughable joke which did
much. to create a sentiment hostile to the General, that he
removed to more congenial regions in South Carolina.
The fame of Leonard Henderson rests not mainly upon
his capacity as a teacher, but upon his eminent qualifica-
tions as a judge of this Court. His pupil. Judge Battle,
states that he was unquestionably a man of genius and in
early life had studied wnth assiduity and success the prin-
ciples of the common law and had made himself familiar
with its grounds and reasons. He was never content until
he had thoroughly comprehended whatever he met in the
course of his reading. " On one occasion while he w^as a
student, he came upon a passage in Bacon's Abridgement,
which he could not understand, and his teacher being from
home so that he could not get it explained, he came very
near throwing aside his books in despair and abandoning
15
the profession forever. He had an honest as well as strong
mind, and in all his arguments we find predominant an
anxious search after truth. For this reason he was restive
when he found himself opposed by precedents which he
thought were unsupported by principle. Whatever fault
he had as a judge was owing to this disposition, but not-
withstanding that, he must always be regarded as standing
higli among those who before and after him have adorned
the Supreme Court bench of North Carolina." His ser-
vices as a Supreme Court Judge embraced a period of fifteen
years and his opinions may be found reported in the 4 to
the 17 N. C, inclusive.
In 1825 ^^ interesting question arising out of the doc-
trine of warranty, was presented to this Court in tlie case
of Taylor V. Shuford, II N. C, 129. Mr. Badger, with his
usual force and clearness had contended that a deed without
covenants of warranty would not pass an after acquired
estate to the original grantee, his argument being that con-
veyances which operate without transmutation of possession
as releases, grants of incorporeal hereditaments and deeds
which owe their operation to the statute of uses, have no such
effect of themselves and that they pass only what the grantor
hath and if he hath nothing they pass nothing. ]\Ir. Badger
further contended that if the grantor afterwards acquires
title, it inures to himself and not to the grantee. But, if
warranty be added to such conveyance, then by force of the
warranty and not of the conveyance, the grantor is estopped
and title subsequently acquired shall inure to the benefit of
the grantee. The inference is conclusive from those cases
that no grant, release or deed operating under the statute
of uses creates any bar except by force of an express war-
ranty annexed to it. With this technical, though cogent
reasoning of Mr. Badger, Chief Justice Henderson took issue
with some tartness, as the opinion will show, and in his
usual direct fashion, thus : " If A sells to B by indenture,
16
he thereby affirms that he has title when he makes his deed,
and if he had not and afterwards acquired one, in an action
by him against B, the title of the latter prevails, not be-
cause A passed to him any title by his deed, for he had
none then to pass, but because A is precluded from showing
the fact." A vast amount of learning has been exhausted
upon this abstruse question, as may be seen by reference to
Prof. Mordecai's instructive and suggestive Law Lectures,
title, " Estoppel by Warranty." It must be highly gratify-
ing to the descendants of Chief Justice Henderson that his
decision in Taylor v. Shuford was finally adopted by the
Supreme Court of the United States in Van Ranselar v.
Kearney, ii Howard, U. S., 298.
Judge Henderson's style, as shown in his reported opin-
ions, was clear, crisp and aphoristic. Thus after deciding
that the right of trial by jury must be sacredly preserved
and that an act of the Legislature which simply permits an
appeal is not a compliance with the constitutional guaran-
tee of trial by jury, and after construing the word "ought "
to mean " must " and to be imperative, he concludes : "It
is sufficient for the creature to know the will of the creator.
Obedience is then a duty without an express command."
In arguing this appeal. Potter, on behalf of the appellant,
declares that "it was enough for his purpose to say that if
he had shown that the acts giving jurisdiction are uncon-
stitutional, any proviso saving the right of appeal, cannot
make them constitutional." All of which is respectfully
submitted for the consideration of the newly discovered
Recorder's Courts. So again in Britton v. Israel, 10 N. C,
225, Judge Henderson boldly declares that even where
there is an express warranty of soundness, if the unsound-
ness be apparant, and, therefore, must have been known
to the purchaser, no action shall lie.
As was said by Judge Battle in his Memoir of Chief
Justice Henderson in the University Magazine for Novem-
17
ber, 1859, the first three judges of our Supreme Court,
Hall, Henderson and Taylor, were especially desirous to
settle for North Carolina a system of law founded upon the
common law of England, modified, indeed, to some extent,
to suit the peculiar nature of our institutions and altered
in many respects by legislative enactment. In this attempt
they were greatly aided by the argument of a bar which
had no superior, and hardly an equal, in any State of the
Union. The truth of this will readily be acknowledged by
those who read the names of Archibald Henderson, Wil-
liam Gaston, Thomas Rufllin, Moses Mordecai, Gavin Hogg,
Peter Brown, Joseph Wilson and Henry Seawell. Some
of these were succeeded a few years later by Duncan Cam-
eron, Francis L. Hawks, George E. Badger, Thomas P.
Devereux, Frederic Nash, Samuel Hillman, William H.
Haywood, Patrick Henry Winston, of Anson, and James
Iredell. To be Chief Justice of this Court and to be worthy
of the position — what, honor in the gift of the people ap-
proaches it — what opportunity for good equals it ? Taylor,
Henderson, Ruffin, Nash, Pearson, Smith, Merrimon, Shep-
herd, Faircloth, Furches, Clark, nomina venerabiles et
clarissima.
It is said that on one occasion Bishop Ravenscroft at-
tempted to reprove the Judge because of his religious or
want of religious views, whereupon the Judge retorted,
" It were well for you to have your horse hitched before
you crack your whip." Unfortunate for the religion of a
hundred years ago, its doctrine was proven orthodox by
apostolic blows and knocks, and the ecclesiastics persisted
in churching such men as Thomas Jefferson, who were
by no means scoffers or unbelievers, but earnest seekers
after truth, and who today would be worshipping at the
same altar with Chas. W. Elliot, Edward Everett Hale and
William H. Taft. Religious tolerance did not character-
ize an age taught by blind mouths whose lean and flashy
18
songs grate upon their scrannel pipes of wretched straw, an
aofe which disfranchised Catholics and forbade Hebrews
owning real estate — and yet it was such an age that pro-
nounced the boldness of the Chief Justice to be skepticism.
A Christian poet had not then sung —
' ' There lives more faith in honest doubt,
Believe me, than in half the creeds " —
Nor had we learned that if the normal man is let alone, to
him the Heavens will declare the glory of God and the
firmament show His handiwork. Such a man will finally
come, like Napoleon, to declare, " I know men, and Jesus
Christ was no mere man," or like Webster to exclaim, "No
man can read the sermon on the Mount and be an infidel."
Whatever in youth Henderson believed or disbelieved, he
finally became a constant worshipper at and communicant
of old Saint John's Church, and his pew may now be seen
by the curious pilgrim to this ancient shrine.
Judge Henderson was a large man physically. He
weighed 212 pounds and was more than six feet in height.
His hair was dark and profuse and well roached back
from his forehead. His eyes were large and grey and in
repose appeared rather heavy, says Dr. Kingsbury, seeming
to be " in-taking rather than giving out." His head was
large, strikingly symmetrical, with forehead high, broad
and exquisitely chiseled. Like all the Hendersons of his
day, he had a remarkable length of chin, and his mouth
was fixed well back in his head. This gave occasion to a
witty Rowan farmer to remark when the Judge presided
the first time in Salisbury, that he thought Baldy Hender-
son's mouth was far enough back in his head, but the Judge
had swallowed his. When the fiery Bishop Ravenscroft
removed to Williamsboro, Judge Henderson did not call as
soon as he might and the stern Bishop, who was preparing
his hebdomadal homily, made no further recognition of the
belated visit than a turn of the head, at once resuming his
19
task. The Judge withdrew and told his boys at the law
school that he had been treated right for his discourtesy.
Judge Battle represents Judge Henderson as kind, affa-
ble and courteous, in domestic and social life. He posses-
sed in no ordinary degree the love of his wife and children,
and there was no man whose intercourse with his family was
better calculated to win their confidence and affection. To
this day his memory is held in tender affection by his de-
cendants, one of whom, now serving his State in the legis-
lative halls, and but yesterday in the roar of battle bury-
ing a leg upon the red hills of Virginia, will, like Gunga
Din, " dot and carry one till the longest day is done," and
another, mingling the blood of Henderson and Scales,
respected by the whole State, has but entered upon his
career. Judge Henderson was a delight to his friends, and
his fine conversational powers, aided by a strong and ener-
getic expression, always drew around him a circle of ad-
miring listeners. With the people of the State he was
always a favorite. - No better illustration of this could be
furnished than his election on the first ballot by the Legisla-
ture, together with a personal friend but political opponent,
over four other gentlemen of great name and extensive
influence in the State, Taylor, Seawell, IMurphy and Yan-
cey. He filled no other offices than that of the Clerk of the
District Court at Hillsboro, Trustee of the University of
North Carolina, and Judge of the Superior and Supreme
Courts. One county and three cities in this and other
States bear the name of Henderson, such an impression did
this virile family make upon mankind.
On 13 August, 1833, the spirit of the Chief Justice pass-
ed to its reward. For him his contemporaries manifested
both veneration and affection. A meeting of the Bar, at
which Adolphus Erwin presided and Burgess S. Gaither
was secretary, was held in August, 1833, at Asheville, and
after adopting the usual preamble, the resolutions draugh-
20
ted by Samuel Hillman, Esq., declared of the late Chief
Justice that his life and character had been identified with
the legal history of North Carolina, his urbanity of man-
ners, dignity of deportment, unspeakable honesty, unshaken
independence and vigilant regard for every class of suitors,
have maintained the universal respect and esteem of the
profession, and his genius and talents have contributed
much to erect a regular system of law and equity, adapted
to our peculiar conditions, interests and institutions. A
meeting of the Granville Bar was presided over by Judge
J . R. Donnell and Hugh Waddell acted as secretary. The
resolutions declared that " the judicial office in the govern-
ment of laws is that in which the community have the
profoundest interest, for in addition to the moral and intel-
lectual elevation of him who fills it, is the respect felt for
the laws themselves, and all good men deplore as a public
calamity that such an office should ever be feebly filled, as
to the mass of mankind the step is easy from a contempt
for the organ to a contempt for the law itself. As a Judge
the deceased was of inestimable value to North Carolina.
The genius, the learning, the firmness which characterized
him, insured the faithful execution of the laws and com-
manded the universal confidence of the public." Judge
Ruffin was making preparation to visit Chief Justice Hen-
derson at Williamsboro when news of the latter's death
was announced. At once he hastened to Raleio-h, and from
the capital on the 21 August, 1833, wrote to John L. Hen-
derson, a son of the Chief Justice :
"There is a vacuum here which none can fill. Time
(what cannot time do of good as well as of evil) will, I trust
alleviate the pangs of sorrow I now experience, and sweeten
the chalice he has so lately embittered to you. Your father
is gone now, but let his works live after him. Forget not
his virtues, his purity of heart, his benevolence, his power-
ful and profound intellect, but while they are yet fresh in
21
your mind, let all that he said or did be carefully and fre-
quently thought of so that the impression on your own
mind may be permanent, and you thereby keep him con-
stantly by you as a counsellor and guide."
The entire letter should be published as a model not only
of elegance of diction, but of the love which bound together
the two great Chief Justices, Ruffin and Henderson.
When the spirit of Daniel Webster was passing from
earth, he signified his wish to be rolled upon his couch to
the window that he might look for the last time upon the
beautiful scenes surrounding " Marshfield," his country
home, and that he might gaze once again into the honest
eyes of his oxen which were driven near the bedside.
When the spirit of the Chief Justice was passing from earth,
13 August, 1833, he requested his friends to permit him
to gaze for the last time upon the scenes of his childhood,
loved Montpelier, and the last words which he uttered
were these : " I have passed the portals and see nothing
terrifying."
Such was Leonard Henderson, racy, of the soil of North
Carolina, bluff, honest, despising shams, thinking what he
had a mind to and saying what he thought, worthy of his
great name, a beacon light to guide you. Sirs and me, and
and all generations to come, and an admonition to little
men that hypocrisy and self-seeking and sycophancy and
concealing one's honest opinions, are lies, hurtful not alone
to the State but more hurtful to the man himself. With
Mansfield he could say, " I wish popularity, but it is that
popularity which follows, not that which is run after. It
is that popularity which sooner or later never fails to do
justice to the pursuit of noble ends by noble means."
22
Address of Acceptance by Chief Justice
Clark.
Time tries all things. Well has the memory and fame
of Chief Justice Henderson stood this stern test. More
than three-fourths of a century have now gone since he
passed from his seat on this bench, but his place in the
opinion of the bar and people of North Carolina has in
no wise abated from that given him when his loss was still
fresh and when the spell of his personal magnetism and
personal friendships still lingered. A beautiful county and
two towns bear his name — an honor North Carolina has
conferred on no other member of this bench save the loved
and lamented Gaston.
Alone among the nations of the world, and alone in all
the tide of time, England and the peoples that speak her
tongue have adopted the system of precedents by which the
opinions of a Judge or of a Court are considered ever after as
authority (unless overruled) in other courts, upon the same
or a more or less similar state of facts. In all other countries
and in all other times, the law of a case has been governed
by statute and when that was lacking the opinion of the
court which tries a case has been considered as sound, and
as likely to be right, as that of a former Court in a litigation
between other parties. Priority of time is not considered
as superiority of wisdom. Whatever the merits of the two
systems, ours gives signs of breaking down. The immense
increase in the number of volumes of reported cases has
long ago placed a complete collection of the whole body of
23
the laws beyond the purse and beyond the time and capac-
ity of research of the practitioner and taxes the means of
state and city libraries. Encyclopedias and other compi-
lations are unsatisfactory palliatives constantly requiring
additions and further condensations. Amid such an enor-
mous and growing tide of judicial utterances, from courts
and judges of every degree of capacity and learning, there
is already a hopeless conflict of decisions and with a little
diligence an array of precedents can be culled to sustain
either side of almost every proposition.
It would be a palpable absurdity for any court to merely
count the number of cases on either side and award the re-
sult to counsel whose diligence can unearth the larger
number of precedents, without reference to their value,
based upon their reasoning and the reputation of the court
or judge from whose pen they come. In this situation
the courts are driven more and more to rely rather upon
the opinion of the great leaders among the judges of known
ability and clearness of view. In North Carolina, the bar
and bench have thus always turned to the opinions of Chief
Justice Henderson, with entire confidence, that when he
has discussed a subject there is little that can be added and
in full reliance upon the accuracy of the result that he has
reached. Thus time and the process of events have added
to and not diminished his value and fame.
The descendants of Chief Justice Henderson — lineal and
collateral — have themselves rendered notable services to
the State and have added to the ancestral honors descended
upon them. The Court is glad to receive at their hands
this portrait of the great lawyer and the great judge. The
Marshal will hang it in its appropriate place upon the walls
of this chamber by the side of his great compeers. The
valuable, instructive and interesting address of Judge Win-
ston in presenting the portrait will be printed in the next
volume of our reports.
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